Andhra Pradesh High Court - Amravati
Mandava Ramesh, Vijayawada., vs Boddu Kranthi Kumar, Vijayawada Anr., on 1 December, 2022
HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL REVISION CASE No.959 of 2017
ORDER:-
This Criminal Revision case is filed under Sections 397 and 401 of Criminal Procedure Code (for short, 'Cr.P.C.'), assailing the judgment dated 21.03.2017 passed in Criminal Appeal No.35 of 2016 by the learned VII Additional District and Sessions Judge, Vijayawada, whereby and whereunder the judgment dated 28.01.2016 passed in C.C.No.674 of 2015 by the learned II Special Magistrate, Vijayawada convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, was confirmed.
2. The Criminal Revision Petitioner was the accused and the 1st respondent was the complainant in C.C.No.674 of 2015. The trial court convicted the accused and assailing the same he had preferred Criminal appeal and the same having been dismissed, he preferred this Criminal Revision Case.
3. For sake of convenience, the parties, hereinafter will be referred to with their status in C.C.No.674 of 2015, i.e. to say the 1st respondent herein will be referred to as, 'the complainant' and the criminal revision petitioner will be referred to as, 'the accused'. 2
4. The complainant filed a complaint under Sections 190 and 200 of Cr.P.C. to punish the accused for the offence under Sections 138 and 142 of the Negotiable Instruments Act (for short, 'N.I.Act') and to award compensation under section 357 of Cr.P.C. It is the case of the complainant that, the accused borrowed Rs.12,00,000/- from him on 25.11.2011 for his business expenses and evidencing the same executed a promissory note agreeing to repay the debt with interest at the rate of 24% p.a. Subsequently, the accused issued a cheque dated 27.05.2013 for Rs.10,00,000/- towards partial discharge of the debt due under the aforesaid promissory note. When presented, the cheque was returned dishonoured with an endorsement 'funds insufficient'. Pursuantly, the complainant got issued a legal notice dated 15.06.2013 by registered post and certificate of posting. The accused received the same, but he neither replied nor paid the amount. Hence, the complainant filed the complaint.
5. In response to the summons, the accused entered his appearance and denied the contents of the complaint.
6. During the course of trial, to substantiate his case, the complainant examined himself as P.W.1 and exhibited Exs.P1 to 3 P10. No evidence, either oral or documentary, is adduced by the accused.
7. The trial Court, upon hearing both sides, having held that the complainant had capacity to lend the amount covered under the promissory note and that the complainant could prove that there is legally enforceable debt and that the accused, who did not deny his signature on Ex.P2 cheque, failed to discharge his burden under Section 139 of the N.I.Act, found the accused guilty for the offence punishable under Section 138 of the N.I.Act and sentenced him to undergo simple imprisonment for six (06) months and pay compensation of Rs.19,50,000/-.
8. Aggrieved thereby, the accused preferred Criminal Appeal No.35 of 2016 contending that the trial Court failed to appreciate the evidence on record in proper perspective and was misguided by presumptions and surmises and the trial Court failed to consider that on the date of Ex.P1 promissory note, the complainant had bank balance of Rs.968-12 ps. and that Exs.P6 and P7 do not prove the capacity of the complainant and they show that the complainant had no savings on the relevant date of alleged lending and Form-16 do not show any other source of income for the complainant and 4 thus the trial Court grossly erred in coming to the conclusion that the complainant has proved that there is legally enforceable debt. Hence, prayed to allow the appeal.
9. The learned VII Additional District & Sessions Judge, Vijayawada, upon hearing both the counsel and upon perusal of the evidence and material available on record, dismissed the appeal confirming the conviction and sentence imposed by the trial Court, holding that the accused failed to raise a defence to rebut the presumption under Section 139 of Negotiable Instruments Act.
10. Challenging the said judgment, the accused has preferred this Criminal Revision Case.
11. Heard Sri J. Urganarasimha, learned counsel for the revision petitioner, Sri A.K. Kishore Reddy, learned counsel for the 1st respondent/ complainant and Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor for the 2nd respondent-State.
12. Sri J.Urganarasima, learned counsel for the revision petitioner, in elaboration, would submit that the Courts below erred in not considering the defence of the accused that while he was working as agent of the complainant, a blank cheque was obtained 5 and as he had discontinued his agency under the complainant, the said blank cheque, which was not supported by consideration, was pressed into service and thus there is no legally enforceable debt or liability to be discharged by the accused.
The learned counsel would further submit that Ex.P10-bank account statement reflects that there was a balance of Rs. 968-12 ps. on the date of the alleged transaction and the amounts deposited into the said account are very meager. It is further submitted that Exs.P6 to P9- Form No.16 of the complainant for the financial years 2009-10 to 2013-14 clearly show that he has no other source of income except his salary and as per Exs. P6 and P7 it was Rs.3,71,395/- per year during the relevant period of alleged transaction. Thus, Ex.P10 coupled with Exs.P6 & P7 makes it abundantly clear the complainant never had capacity to advance huge amount and the Ex.P2 cheque was devoid of consideration and the same was procured by him when the accused joined as an agent under him and thus there is no legally enforceable debt or liability. However, the Courts below, upon improper appreciation of evidence, had come to the conclusion that Ex.P6 & Ex.P7 disclose the financial capacity of the complainant.
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The learned counsel has drawn the attention of this Court to the evidence of the complainant that he was working as a Manager in one of the insurance company and submitted that the trial Court held that the complainant was also doing real estate business besides being a Manager and came to the conclusion that the complainant had sufficient source of income to lend the amount, which is perverse and thus the Court while exercising revisional jurisdiction can interfere with the concurrent findings of the Courts below, since they were recorded upon improper appreciation of evidence.
The learned counsel would further submit that non-institution of suit basing on Ex.P1-promissory note gives out a clear indication that Ex.P1 was a forged document and fearing that commission of forgery would come to light, he avoided instituting a suit, but the Courts below did not consider the same in right perspective.
The learned counsel would further submit that the accused did not receive Ex.P3 legal notice and hence no reply was issued and non-issuance of reply would not amount to admission of the contents of the notice and moreover the complainant must prove the guilt of the accused beyond all reasonable doubt. It is further 7 submitted that failure on the part of the accused in entering the witness box and adducing any evidence on his behalf is of no consequence and the accused can rely on the material produced by the complainant and also on the inconsistencies brought out in the evidence of the complainant in order to rebut the presumption.
In support of his contentions, he relied on Basalingappa vs. Mudibasappa1 and K. Subramani v. K.Damodara Naidu2.
On the above grounds, the learned counsel for the revision petitioner prayed to allow the Criminal Revision Case by setting aside the judgment impugned.
13. On the other hand, Sri A.K.Kishore Reddy, the learned counsel for the 1st respondent/ complainant, would submit that since the accused had admitted issuance of cheque, the presumption under sections 118 (a) and 139 of the Negotiable Instruments Act would arise and the accused has failed to rebut the said presumptions by raising a probable defence. It is further submitted that, non-issuance of reply to the statutory notice got issued by the complainant amounts to acquiescence of its contents and had there been any truth in the theory propounded by him that 1 . (2019) 5 Supreme Court Cases 418 2 . (2015) 1 SCC (Crl.) 576 8 a blank cheque was given to the complainant at the time of his joining as an agent under the complainant without there being any financial transaction, the accused would have issued a reply to the said effect. It is further submitted that, the accused did not enter the witness box to substantiate his case and thus the accused had failed to rebut the presumption and the Courts below having analysed the oral and documentary evidence available on record in right perspective rejected the defence put forth by the accused and this Court while exercising revisional jurisdiction cannot interfere with the concurrent findings of fact. Hence, prayed to dismiss the Criminal Revision Case.
14. The learned Special Assistant Public Prosecutor supported the impugned judgment and prayed to dismiss the Criminal Revision Case.
15. The complainant has alleged that the accused, having borrowed an amount of Rs.12,00,000/- on 25.11.2011 from him for his business expenses, executed Ex.P-1 promissory note and subsequently issued Ex.P-2 cheque towards partial discharge of the debt borrowed under Ex.P1 and when presented, the said cheque was returned dishonoured with an endorsement "funds insufficient" 9
and after getting a statutory notice issued under Ex.P-4, which was received by the accused evidenced by Ex.P5-acknoweldgemnt, and consequent to the failure of the accused in arranging the funds within the time stipulated under the Negotiable Instruments Act, he filed the complaint. To substantiate his contentions, the complainant got himself examined as P.W.1 and got marked Ex.P1 to Ex.P10 and deposed in tune with the contents of the complaint.
16. The accused did not get into the witness box nor did he examine any witness on his behalf. From the suggestions put to the complainant in cross-examination, the defence taken by the accused is to the effect that the complainant had obtained blank cheques from him when he worked as insurance agent under him and as he stopped working under him, only to wreck vengeance against him he pressed into service Ex.P2 cheque, which is devoid of consideration and there is no legally enforceable liability on him to be discharged and thus the complaint is liable to be dismissed.
17. The accused denied receipt of Ex.P4 registered notice. However, Ex.P5 acknowledgment relied on by the complainant shows that the residential address mentioned therein is identical to the description given to the revision petitioner in this criminal 10 revision case and so also in the Criminal Appeal and in C.C.No.674 of 2015. Except bare denial, the accused did not take any steps to disprove receipt of Ex.P4 notice by examining the postal authorities. Thus, the contention advanced by the accused in this regard is not true and correct.
18. In the decision in Basalingappa vs. Mudibasappa relied on by the learned counsel for the revision petitioner, their Lordships of Hon'ble Supreme Court while relying on various pronouncements of the Hon'ble Supreme Court held that, it is the well established principle of law that the prosecution must prove guilt of the accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is preponderance of probabilities. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the material submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the material brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden. 11
19. In view of the above settled principles of law, non issuance of reply to Ex.P4 registered notice and failure on the part of the accused to enter into the witness box to rebut the presumption under Section 139 of the Negotiable Instruments Act would be of no consequence. Thus, the contentions advanced by the learned counsel for the 1st respondent/ complainant in this regard are of no avail.
20. The thrust of the contention raised by the learned counsel for the accused is that the complainant had obtained a blank cheque from the accused when he joined as an insurance agent under him and as the accused discontinued to work under him, he foisted this false case and there is no legally enforceable debt or liability to be discharged by the accused.
21. Regarding issuance of blank cheque, Section 20 of the Negotiable Instruments Act envisages that a person who issues an inchoate instrument thereby has given prima facie authority to the receiver to make or complete the instrument.
22. During the course of the arguments, the learned counsel for the accused though contended that the accused is denying his signature on Ex.P2, the suggestion made to the complainant that 12 the complainant had obtained a blank cheque from him clearly goes to show that the accused has admitted execution of Ex.P2 cheque. It is also relevant here to note that except suggesting that there is difference in the word 'a' and 'e' in Exs.P-1 and P-2, it is not at all the specific defence of the accused that he did not sign Ex.P-2 cheque and it is a forged document. Therefore, it can be safely held that the accused had admitted the execution of Ex.P2 cheque and consequently the presumptions under Sections 118 (a) and 139 of the Negotiable Instruments Act would arise which are to be effect that Ex.P-2 cheque was made for consideration and it was issued for discharge of the legally enforceable debt or liability, until the contrary is proved.
23. It is relevant here to extract the observations of the Hon'ble Supreme Court in Malkeet Singh Gill vs. The State of Chhattisgarh3, regarding scope of appreciation of evidence by revisional Courts while dealing with concurrent findings of conviction arrived at by two Courts.
"Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two Courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise 3 . Criminal Appeal No.915 of 2022 (arising out of SLP (Crl.) No.800 of 2021), dated 05.07.2022.13
the jurisdiction alike to the appellate Court and the scope of interference in revision is extremely narrow. Section 397 of Criminal Procedure Code ( in short 'CrPC') vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction of law. There has to be well- founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings."
24. Keeping in view the above observations, now the material on record has to be scanned to find out whether the concurrent finding of conviction suffers from any irregularity and impropriety and needs interference of this Court while exercising revisional jurisdiction.
25. As could be seen from the suggestions posed to the complainant, the specific defence raised by the accused is with regard to the financial capacity of the complainant to lend such a huge amount.
26. In order to prove his financial capacity, the complainant placed reliance on Ex.P6 to Ex.P9 i.e. his Form-16 for the financial years 2009-10 to 2013-14 and Ex.P10-his bank account statement from 01.01.2009 to 31.12.2014. No doubt, Ex.P10 bank account statement discloses that the there was a balance of Rs.968-12 ps. 14 as on the date of the transaction in question. The learned counsel for the petitioner laid much emphasis on this entry to contend that the complainant had no financial capacity to lend such huge amount.
27. There is no dispute regarding avocation of the complainant as a Manager in an Insurance company. Form-16 discloses the yearly salary of the complainant during the financial years 2009-10 was Rs.3,71,395/- and during the financial year 2011-12 was Rs.6,39,737/-. Taking into consideration of the fact that the complainant was gainfully employed drawing a decent salary, it can be safely concluded that the complainant had capacity to lend the amount stated in Ex.P1-promissory note.
28. It is appropriate to mention here that the complainant has no necessity to establish his financial capacity as per the decision in M.Vidyavathi v. Chandraiah @ Chandrababu and another (2000(1) ALT (Crl.) 347 A.P.)) and the relevant portion of the said judgment is extracted hereunder:
"capacity to lend the amount is not an ingredient for the offence punishable under Section 138 of the Act."15
29. It is curious enough to note that, the accused did not offer any explanation as to how Ex.P1 promissory note came into existence and except putting a suggestion to the complainant that non filing of suit based on Ex.P1 makes it clear that it is a forged document, he did not take any steps to prove that it is a forged document. Mere non filing of suit would not lead to any inference regarding forged nature of Ex.P1 promissory note.
30. Regarding non-disclosure of the amount lent under Ex.P1 in the Income Tax returns by P.W.1 is concerned, merely because the amount advanced by a lendor was not shown in his income tax returns the same would not disentitle him from recovering the amount from his borrower. Non-disclosure of the amount may entail consequences for the party acting in breach of Income Tax law such as penalty and prosecution under the provisions of the Income Tax Act, but, the borrower cannot get any advantage of it to say that since the amount was not shown in the income tax returns he need not pay. Thus, whether the complainant reflected the availability of the amount lent in his income-tax returns, is not a matter of concern for this Court and that would be an aspect to be considered by the income-tax authorities.
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31. The next contention that advancement of loan in cash over and above Rs.20,000/- is in violation of Section 269 SS of the Income Tax Act and renders Ex.P2 cheque is unenforceable. Payment of money in cash beyond Rs.20,000/- is a violation of Section 269 SS of the Income Tax Act and breach of Section 269 SS of the Income Tax Act provides penalty under Section 271D of the Act. However, advancement of loan to the tune of Rs.12 lakhs in cash is not prohibition in law and the same does not make any transaction unenforceable. As stated above, the consequence of breach would be imposition of penalty, but, the borrower cannot get any advantage out of it.
32. In view of the above, the accused having admitted issuance of Ex.P2 cheque to the complainant, failed to rebut the presumption under Section 139 of the Negotiable Instruments Act by placing any legally acceptable evidence to show that the said cheque was devoid of consideration and it was only issued as a security at the time of his joining as an agent under the complainant. Therefore, this Court holds that the Courts below have scanned the material available on record in right perspective and had come to the right conclusion that the accused had issued Ex.P2 cheque for discharge of a legally enforceable debt covered under 17 Ex.P1-promissory note. This Court finds neither irregularity nor impropriety in the impugned judgment and the same does not require any interference of this Court. Thus, the criminal revision case lacks merits and the same is liable to be dismissed.
33. Accordingly, the Criminal Revision Case is dismissed, confirming the conviction and sentence passed by the Courts below.
As a sequel, all the pending miscellaneous applications are closed. Interim Orders, if any, shall stand vacated.
____________________________________ JUSTICE RAVI CHEEMALAPATI Date : 01.12.2022 RR 18 HON'BLE SMT JUSTICE RAVI CHEEMALAPATI CRIMINAL REVISION CASE No.959 of 2017 01.12.2022 U RR